Gloucester Shire Council v McLenaghan & Anor

Court of Appeal (NSW)|2000-04-27|Before: Priestley JA, Powell JA, Ms P, Latham CJ, Dixon J, McTiernan J

Reported Decision : [2000] 109 LGERA 419 [2000] 31 MVR 340

CITATION : Gloucester Shire Council v McLenaghan & Anor [2000] NSWCA 208 revised - 22/08/2000 FILE NUMBER(S) : CA 40904/98 HEARING DATE(S) : 27 April 2000 JUDGMENT DATE : 8 August 2000

PARTIES : Gloucester Shire Council v Gerard Thomas McLenaghan by his Tutor Karen Anne McLenaghan and John McLenaghan JUDGMENT OF : Priestley JA at 1; Powell JA at 20; Davies AJA at 50

Appellant - M. Holmes QC / Ms P. Gormly COUNSEL : Respondent (1) - Submitting appearance Respondent (2) - C. Stevens QC / P. Arden Appellant - Sparke Helmore SOLICITORS : Respondent (1) - Submitting appearance Respondent (2) - McCourts CATCHWORDS : Highway authorities - Non-feasance/misfeasance rule LEGISLATION CITED : Local Government Act 1919 Buckle v Bayswater Road Board (1936) 57 CLR 259 Calvaresi v Beare [2000] SASC 21 Commissioner of Main Roads v Hennessy (SC of WA, Full Court, 27/9/96, unreported) Connelly v Ministry of Transport (1965) 63 LGR 372 East Sussex Rivers Catchment Board v Kent [1941] AC 74 Gorringe v The Transport Commission (Tas) 80 CLR 357 CASES CITED: Hill v Commissioner for Main Roads (1989) 68 LGRA 173; 9 MVR 45 McIntyre v Ridley District Council (1991) 56 SASR 343 Simon v Islington Borough Council [1943] 1 KB 188 Singleton Shire Council v Brodie[1999] NSWCA 37 Skilton v Epsom & Ewell Urban District Council [1937] 1 KB 112 Threadgate v Tamworth City Council [1999] NSWCA 32 Turner v Ku-ring-gai Municipal Council (1990) 72 LGRA 60: 12 MVR 321 DECISION : Appeal dismissed with costs.

GLOUCESTER SHIRE COUNCIL v Gerard Thomas McLENAGHAN by his tutor Karen Anne McLENAGHAN & ANOR

HIGHWAY AUTHORITIES - NON-FEASANCE/MISFEASANCE RULE - The trial judge found the defendant 70% at fault for a car accident, and the Council on whose road the accident happened, which had been joined as a third party, 30% at fault. The trial judge's judgment against the Council was based on his view that the Council's immunity for non-feasance as a highway authority was not applicable, because it was negligent as a traffic authority: Turner v Kur-ing-gai Municipal Council (1990) 72 LGRA 60. On appeal Priestley JA and Davies AJA were of opinion the appeal should be dismissed; Powell JA thought it should be upheld. Priestley JA agreed with Davies AJA's reasons for holding misfeasance had been established; Powell JA thought that conclusion not open. Powell JA and Davies AJA thought the trial judge was wrong in applying Turner in the circumstances; Priestley JA was doubtful about this and expressed no opinion about it. ORDER Appeal dismissed with costs

GLOUCESTER SHIRE COUNCIL v Gerard Thomas McLENAGHAN by his tutor Karen Anne McLENAGHAN & ANOR

1 PRIESTLEY JA: The Gloucester Shire Council appeals against an interlocutory judgment by Harvey Cooper DCJ that 30% of the fault for a car accident in its Shire lay upon it. The Council was the third party in the proceedings having been joined as such by the defendant, the driver of the car, whose fault the judge assessed at 70%. 2 The main contention in the council's appeal was that no finding of liability should have been made against it. 3 The accident happened in 1992 about twenty kilometres east of Nowendoc on the road to Gloucester. 4 In its appeal, the Council relies on legal rules laid down by the High Court in 1936, in Buckle v Bayswater Road Board (1936) 57 CLR 259. That case was decided by three judges, Latham CJ, Dixon J and McTiernan J. All three agreed that highway authorities were not liable for non-feasance, but were liable for misfeasance. In the case itself Latham CJ and McTiernan J thought the facts showed misfeasance and concluded that Mr Buckle should have judgment against Bayswater Road Board. Dixon J, in dissent, was of opinion that the facts showed non-feasance, so that the Bayswater Road Board was not liable. The origin of the rules stated in the case lay far away from Nowendoc both in time and space. That might not matter were it not also the case that between the time of the origin of the rules and 1936 there had been very significant change in the type and volume of road traffic, the building of roads and highways, the ways in which roads and highways were maintained and controlled, and the ways in which highway authorities were constituted and financed. Changes in these matters continued rapidly between 1936 and 1992. 5 The court in Buckle upheld the non-feasance/misfeasance distinction on the basis of a chain of authority, mostly the decisions of English judges, reaching back to the days of Coke (d 1634), when a common law liability lay upon the inhabitants of parishes or counties to repair roads. This liability was later transferred to local authorities by statute, according to Latham CJ (at 268). The liability had been enforceable not by an action for damages but by indictment. Dixon J left open the possibility that in 1936 that was still the position (at 292.6). The relevant decisions were not all consistent and Dixon J exerted his very considerable powers in reconciling the bulk of them and branding an unfortunate few as incorrect and responsible for a departure from principle requiring a process of rehabilitation which proved to be slow (at 290). In 1950 Fullagar J described the position reached in regard to the immunity of highway authorities as "very curious" (Gorringe v The Transport Commission (Tas) 80 CLR 357 at 377). Dixon J's rationalisation in Buckle of the law as he then saw it seems unpersuasive to many judges today, if the number of cases which this court sees in which trial courts struggle to evade or limit its reach can be taken as a reliable indication. Right at the beginning of the 20th century there seems to have been some dissatisfaction in England with the position reached by the case law; in Buckle (at 301) McTiernan J mentioned that in 1904 Lord Halsbury had commented adversely on the fact that in some cases non-feasance had been found where the facts really amounted to misfeasance. 6 In the present case the trial judge case escaped Buckle's vice-like grip by reliance on a decision of this court, Turner v Ku-ring-gai Municipal Council (1990) 72 LGRA 60 in which reference was made to the fact that the non-feasance/misfeasance distinction had no application to negligent omissions by a traffic authority even though it happened also to be the highway authority (at 328). 7 In his opinion in this appeal, which I have had the benefit of reading in draft, Davies AJA doubts whether the trial judge was justified in relying on Turner. However, for other reasons, with which I agree, and in respect of which I will later add only one observation, he concluded that the appeal should be dismissed. Because I agree with Davies AJA's alternative basis for liability, I do not need to consider whether the trial judge was in error in relying on Turner. I should however record that, without having examined the question fully or formed a final opinion on it, it seems to me distinctly arguable that the trial judge's use of Turner was supportable. 8 A further matter that I do not base my opinion on because it was not argued in the appeal, but which I nevertheless think is worth recording was examined to a certain extent in evidence at the trial. This relates to the original construction of the road. It seems to me that the law as stated in Buckle starts with the assumption that the relevant highway authority has either itself built or become responsible for a public road that was appropriately built for the circumstances of its time. The rule then is that neglect on the part of the road authority after such first construction to construct, repair or maintain the road or other highway can not give rise to civil liability: see Dixon J in Buckle at 281. 9 The origin of the road in the present case may in itself be enough to take the case outside the ambit of the rules in Buckle. The evidence in the case concerning the origin of the road came mainly from a document in evidence dated 22 December 1960, as explained by Mr Gendron, the Council's Director of Technical Services. The history was that the part of the road where the accident happened had come into existence as a private road owned by a sawmiller that had been used by timber jinkers. This came into the ownership of the Council in the early 1960s as part of a long term plan to build a good trafficable road between Walcha and Gloucester. Mr Gendron described it as having been a forestry road until, in the Council's hands, it became a public road. Part of his cross-examination on this topic reads as follows: " Q. Doesn't that all boil down to this that in the early sixties, when council took over this road, it then set about making it suitable for the public? A. Yes. Q. So to that extent, it constructed it? A. It started to upgrade it, yes. Q. and by 'upgrade', you mean build corners in a proper fashion for the public to travel on? A. Improve the standard of it, yes. Q. Because this has been, as we've already said, a tourist road since the early seventies? A. Yes. Q. And indeed, the name was changed to Thunderbolt's Way to give it that more tourist flavour? A. That's right. Q. And it's a road that's used historically by timber jinkers? A. Yes. Q. Trucks carting wool and other agriculture produce? A. Yes. Q. And a tourist route for people travelling in motor cars and caravans and that type of thing? A. Yes. Q. And that's developed since it was taken over in the sixties? A. Yes. " 10 So far as I can see there was no other evidence before the court concerning the state of the relevant part of the road at the time when it came under the Council's control. On the evidence as it was left, the inference may well be available that at the time the Council began to develop the road, it was not then in a suitable condition for general traffic. From that time on, both until 1992 and afterwards, the evidence shows that the Gloucester/Walcha road was being worked on, whenever the Council had available funds, to bring it towards the eventual objective of being fully sealed. Different parts of it were sealed from time to time and other improvements made. 11 Whether there was room in the circumstances of the improvements of the Gloucester/Walcha road from the 1960s onwards for the operation of any non-feasance immunity seems to me to be a very real question. However, for the reason I have indicated it is not open in this appeal for me to give full consideration to this possible way of looking at the case, or to base any conclusion upon it. 12 The case itself provides a good example of a basic problem lying behind the rule in Buckle. The extensive use of motor transport generates a need for good roads and highways and an expectation that they will be provided. This expectation translates itself into a tendency on the part of courts to think that liability for damage caused by defective roads and highways should be borne by highway authorities. Yet in many cases defects in roads and highways are the result of insufficient funding being available to the highway authorities. 13 The evidence in the present case shows the following: the population of the Gloucester Shire was approximately 4,900, so that the number of ratepayers would be very considerably lower; the Council's area was about 2,900 square kilometres; much of the road building and improvement in the Shire was paid for by special grants from the Commonwealth and the State; the Council was earnest and persevering in its efforts to complete a fully sealed road between Gloucester and Walcha, but it was simply impossible to do so from its own funds and those otherwise made available to it, any more quickly than by the rather stately rate of progress shown in the evidence. 14 These features were emphasised in the Council's case, on the merits, and also were no doubt symptomatic of the policy background to the non-feasance rule. On the other side of the merits question was the fact that the Council actively promoted the use of the road for tourist and commercial purposes, with a view to improving the economic life of the district. This was why the Gloucester/Walcha road was renamed Thunderbolt's Way. The Council was thus in the dilemma of wanting traffic on the road to increase but not having sufficient funds to bring it quickly into the state which was planned for it. 15 Cases more or less like the present one are continually occurring and cause acute problems both for damaged users of the roads and the highway authorities. 16 However, as I have indicated, in the present case, I agree with the method of reasoning and the conclusions of Davies AJA. I also indicated earlier that there was one observation I wished to add to what he said in his opinion. 17 This relates to one of the matters integral to the difference of opinion between Powell JA and Davies AJA in this case. In Powell JA's view, the basis on which Davies AJA concluded the Council was liable was not one which the defendant had sought to make at the trial and was not open to this court on appeal. However, in one passage in his reasons, the trial judge recorded that his understanding of the defendant's claim against the Council was: " essentially that the roadway up to the subject bends was reasonably good and permitted moderately high speeds at times up to the State maximum of 100 kilometres per hour. However, at the commencement of the bends there is a sudden change which necessitates a very much lower speed, and that the cross-defendant failed to give adequate warning of the dramatic change in conditions. " 18 I can see that minds might reasonably differ on the question whether the case thus asserted before the trial judge was sufficiently similar to the basis upon which Davies AJA reaches his conclusion, to make it legitimate for Davies AJA (and hence for me also) to decide the case in the way he proposes. To my mind the similarity between the two ways of putting the matter is sufficiently close to justify the view that Davies AJA's conclusion is based on matters that were squarely before the court at the trial. 19 In my opinion the appeal should be dismissed with costs. 20 POWELL JA: I have read in draft the Judgment which has been prepared by Davies AJA. I am unable to agree with his Honour's conclusions nor with the reasons which he gives for having reached those conclusions, which reasons and conclusions, I regret to say, I regard as not being open on the case which the Defendant sought to advance against the Council at trial, and which, in any event, I regard as contrary to established authority. 21 Although, in his Judgment, Davies AJA has set out some of the background facts, those facts, in my view, need to be elaborated upon in order that the circumstances which gave rise to the accident might more fully be understood. 22 The road between Walcha and Gloucester which is now known as Thunderbolt's Way, lies within the boundaries of two shires, the Shire of Walcha and the Shire of Gloucester. For the greater part of its length between Walcha and the site of the accident, Thunderbolt's Way lies within the boundaries of the Shire of Walcha - the boundary between the two shires is about 7.45 kilometres to the North West of the site of the accident. That part of the road which lies within the boundaries of the Gloucester Shire appears to be about 66 kilometres in length (see Blue AB 254). The road from Walcha to the boundary between Walcha Shire and Gloucester Shire appears as if it might be of the order of 100 kilometres in length. 23 As best as one can judge it from the materials which are before the Court (Blue AB 460) the road was constructed many years ago by the Forestry Commission and Carsons Northern Timber Company Limited as a logging road. The Giro Road - which seems as if it is in some way associated with the Giro State Forest appears to be about 44 kilometres North West of Gloucester and about 22 kilometres South East of the boundary between Walcha Shire and the Gloucester Shire while Carsons Forestry Road appears to be about 53 kilometres North West of Gloucester and about 13 kilometres South East of the boundary between Walcha Shire and Gloucester Shire (Blue AB 254). 24 It is said (Blue AB 391) that the road from Walcha towards Nowendoc - which is located within the Walcha Shire - was comprised of bitumen paved two lane, two way, roadway in generally good to excellent condition until a point about 5 kilometres North of Nowendoc at which point the road reverted to a well aligned gravel pavement section. 25 The report of Mr. Hedley of 21 February 1994 (Blue AB 332) that from the Nowendoc village turn off to the boundary between the Walcha Shire and Gloucester Shire - distance of 11.85 kilometres, in which there were some 30 curves - the road pavement was of unsealed gravel with large hard rocks embedded within the carriageway being of variable width from a minimum of approximately 6 metres wide - it was said that curve travel speeds were generally 70 kph with one curve a low of 50 kph and 3 curves of 80 kph. 26 Immediately to the South East of the boundary between Walcha Shire was a short - 200 metres - straight unsealed gravel roadway, the carriageway being in excess of 6 to 7 metres in width and the surface good. At the end of the gravel roadway was a bitumen sealed road about 6.5 kilometres in length traversing undulating country. Towards the North Western end of the bitumen road is a sign "Narrow Gravel Road" alerting traffic travelling to the North West of the gravel road beyond the bitumen, while approximately 100 metres from the South East end of the bitumen road is a sign "Gravel Road" warning traffic travelling South East of the gravel road beyond the bitumen. According to Mr. Hedley's report (Blue AB 333) minimum travel speed on the bitumen sealed road, due to alignment only, was 80 kph with 100 kph generally possible. 27 It should be noted that, during the course of his evidence in chief (Black AB 50) the Defendant said that he did not recall the sealed section of roadway and that as he travelled towards the point of the accident he did not observe any signs on the side of the road indicating a change of conditions. 28 In light of the evidence given by the Defendant at trial as to what occurred immediately prior to the accident, it seems desirable that I should set out verbatim what was recorded by Mr. Hedley in his report as to the condition of the road from the end of the bitumen sealed road to the point of the accident. It was as follows (Blue AB 333): "4. SECTION 18.6Km - 18.7Km · The bitumen surfacing ends within a high speed sweeping Right Hand curve. · The bitumen is approx 6.3 metres wide and the road formation 10 metres wide at the start of this section tapering to 8 metres formation width at the end which is also the end of the sweeping curve. · The gravel part of this section is in good condition with 80 Kph being a comfortable and safe speed. 5. SECTION 18.7Km - 19.1Km · Gravel surface in good condition, formation width approx. 7 metres - 80Kph achieved. · Alignment small straight, slight kink to left then 250-300 metres straight. 6. SECTION 19.1Km - 19.2Km · Gravel surface fair only with large rocks protruding up to 70mm above general surface. · Formation width 5.5 metres approx. · Left hand curve - 60Kph achieved. 7. SECTION 19.2Km - 19.3Km · General surface fair only and with protruding rocks similar to previous section 6 and is a Right hand curve - 60 Kph achieved. · Formation width generally 7.5 metres wide, however, due to either maintenance grading or traffic choice the right hand side 5.5 metres only is used and has correct crossfall. · The left hand 2 metres width has adverse crossfall, is covered with fine loose gravel approx. 70mm deep and appears to receive little use by traffic. · The loose gravel could have been swept to this location by traffic or by maintenance grading. · The accident site is at the end of this section and on the Left Hand side of the road. GENERAL COMMENT (a) The accident site is within a section some 1.5 Km in length which would be the most hazardous encountered between Nowendoc and Gloucester. (b) The steep terrain on the left hand side through sections 6 and 7 and the accident site is particularly daunting being very close and adjacent to the road without protection of barrier, guide post or signs. ………"

29 In the Second Further Amended Third Party Notice which was filed on behalf of the Defendant, it was alleged (inter alia) as follows: "4. At all relevant time (sic) the Third Party had the control of such part of the Walcha Gloucester Road that fell within the boundaries of the Third Party and in particular had the control of such roadway at the site of the subject accident and further had control of the said area and of all materials on or in the road. 5. At all relevant times the Third Party was charged with the responsibility to maintain such part of the Walcha Gloucester Road as well (sic) within the boundaries of the Third Party and to keep the roadway safe for all users of the roadway. 6. The Third Party failed to keep the said roadway safe and the Defendant says that the collision referred to in paragraph 2 herein was caused by the negligence of the Third Party particulars whereof are as follows: (a) Failure to properly sign post the said roadway so as to warn road users of a safe speed at which to travel. ……… (e) Failure to indicate to road users by sign posting a safe travelling speed and/or changing road conditions. ………"

30 In the course of his Judgement, Cooper DCJ, having found (RAB 27-28) "that the Defendant entered and/or negotiated this curve at a speed which was excessive in the circumstances" and that "accordingly … the Defendant was negligent" then turned to the Defendant's claim against the Council. In this regard, he wrote (RAB 28): "The defendant's claim against the cross-defendant, as I understand it, is essentially that the roadway up to the subject bends was reasonably good and permitted moderately high speeds at times up to the State maximum of 100 kilometres per hour. However, at the commencement of the bends there is a sudden change which necessitates a very much lower speed, and that the cross-defendant failed to give adequate warning of the dramatic change in conditions. In addition, the defendant also alleges that there was an adverse camber which contributed to the accident."

31 Later, after referring to Exhibit 1D(10) - "Road Traffic Accident Data for Gloucester Shire" (Blue AB 337-357) - covering the years 1987 to 1992 inclusive, which data records accidents in which at least one person was killed or injured, or at least one motor vehicle towed away, and which data purports to record 7 such incidents occurring in that period of 5 years, Cooper DCJ wrote (RAB 35-36): "The evidence does not satisfy me on the balance of probabilities that any of these accidents occurred at the same site as the subject accident, nor that the vehicles involved in these accidents were necessarily travelling in the same direction as the defendant was. However, the records do satisfy me on the balance of probabilities, that they occurred on curves of a similar nature to the subject curves, and certainly within five or ten kilometres of the accident site. Thus, it ought to have been, with the exercise of reasonable care, within the knowledge of the cross-defendant, had it made proper inquiries, that these curves were a source of danger to users of that roadway. In my mind it does not avail the council to say that there had been no accidents at this particular curve. It ought to have been well aware that curves of a similar type, in a similar area, were a source of danger to users of the roadway."

32 Before turning to consider the particulars of negligence assigned in the Second Further Amended Third Party Notice, Cooper DCJ wrote (RAB 37): "It is common ground that Thunderbolt's Way was a road that was far from ideal as at 10 October 1992. It was a road which sent from tablelands, down to the coastal plain, and by its very nature would cost a lot to bring up to the standard of what one might call a normal metropolitan thoroughfare. Council's funds are limited and it would be quite unreasonable to expect council to spend large sums of money in upgrading that road. In fact it did expend large sums of money from grants over the course of the two decades prior to the subject accident and did make substantial improvements. In determining whether the council was negligent it must be borne in mind that it is not liable for mere nonfeasance, but is liable only for misfeasance. Thus council is not responsible for mere failure to maintain, only for failure to do such work as it did do in a reasonably safe and proper manner. In addition council is liable for failing to provide adequate warnings by sign posts. See Turner v. Ku-ring-gai Municipal Council 12 MER 321."

33 His Honour then turned to deal with the particulars of negligence. However, as his Honour did not find any of those particulars other than (a) and (e) established, I do not consider it necessary to record the manner in which his Honour dealt with those additional particulars. Insofar as is relevant, his Honour wrote (RAB 38-40): "The first is failure to properly signpost the said roadway so as to warn road users of a safe speed at which to travel. In determining what is reasonable conduct in relation to signposting, one must bear in mind the cost on the one hand to the council, the funds of which are very limited, and on the other hand the potential danger to users of the roadway. The failure to have appropriate signage. At the date of the accident, a vehicle travelling south, approaching the subject curves, left a sealed road with only one warning sign, and that said 'Gravel Road'. This was merely a warning as to the nature of the surface upon which the vehicle was then to pass. It gave no warning whatsoever of the descent, or of the curves, or of the loose gravel on the surface of those curves, and thus left the driver unfamiliar with the road, in the state of some ignorance of the dangers that lay ahead. Of course there is still a duty upon the driver to keep a proper lookout, and to take the special cares to which I have referred earlier in this judgment. However, in the circumstances I am satisfied on the balance of probabilities that the council, with the exercise of reasonable care, ought to have foreseen that the curves would cause a danger to users of the roadway who were unfamiliar with that roadway. It must also be borne in mind that they were then aware that tourists used that roadway, particularly during school holidays. Under these circumstances, I am satisfied on the balance of probabilities that reasonable care on the part of the cross-defendant required the council to erect some form of sign which gave warning of the nature of the roadway ahead for those travelling in the direction then being travelled by the defendant. I would consider it unreasonable to require the council to place a sign indicating a curve or speed advisory sign at each individual corner. There were some hundreds of corners, and this would impose a financial burden upon the council, which I would regard as unreasonable. However, what ought to have been erected in order to meet the standard of reasonable care, was a warning sign or signs some 100 metres before the first curve (that is the left hand curve) warning motorists of the presence of the combination of steep descent, curves and of loose gravel on the surface of those curves for the next stated number of kilometres. This would have brought home to the motorist the need to take special care. It is appreciated that the expert engineers, in their evidence, suggest something more. To my mind the view of Constable Dodds, which are (sic) set out earlier, are far more reasonable and logical, and I accordingly find this particular of negligence proved. ……… The fifth particular is failure to indicate to road users by signposting a safe travelling speed or changing in road conditions. This particular is essentially the same as the first one and I have already dealt with it."

34 Although in the passage which I have set out his Honour refers to "the combination of steep descent, curves …" it should be noted that his Honour had earlier recorded (RAB 29): "Travelling south towards the impact position, the road has a downward slope of about 7 to 10 degrees. It is on the side of a steep hill, rising on the western side, and falling away on the eastern side. The right hand curve has a radius of about 120 metres to 140 metres to the eastern edge, and goes through an angle of about 30 degrees."

35 Having dealt with the particulars of negligence, Cooper DCJ then turned to the question of causation, in respect of which his Honour said (RAB 41-42): "On behalf of the cross-defendant, it is submitted that the failure to have the signposting of the type which I have said ought reasonably to have been provided, was not a contributing factor to the accident. The cross-defendant relies on the evidence of the Defendant at page 53: 'I don't think having a speed sign would have made any difference because I wasn't travelling fast.' It was further submitted that there was no direct evidence that the absence of any sign contributed to the accident. Counsel for the cross-defendant also pointed out that the defendant had travelled throughout most, if not all of the right hand curve before he lost control. I have considered these submissions but, having taken into account the totality of the evidence, I am comfortably satisfied on the balance of probabilities that the cause of the accident was the defendant's failure to drive at a sufficiently slow speed when negotiating the bends. Had he been given warning of the type described above, I am satisfied on the balance of probabilities that he would have been made more aware of the particular problems which he could be expected to encounter, and that the failure to give him the warning, contributed to the accident."

36 In its Amended Notice of Appeal, the Council raised the following grounds of appeal: "1. The trial Judge erred in holding that the Claimant (sic) was under a duty to provide a traffic sign on a highway controlled by it. 1A. The trial Judge erred in holding that the claimant had a duty to erect or acted in breach of its duty by not erecting, a warning sign or signs some 100 metres before the first curve warning motorists of the presence of the combination of steep descent, curves, and of loose gravel on the surface of those curves for a distance of kilometres. 1B. The trial Judge was in error in holding that it was not open to hold or ought (sic) not to have held that the accidents listed on page 16 of the judgment occurred on curves of a similar nature to the subject curve and within 5 or 10 kilometres of the accident site. 2. The Trial Judge erred in finding that the failure to provide a traffic sign was a cause of the plaintiff's injury and damage."

37 No Notice of Contention was filed on behalf of the Defendant. 38 As the passages from Cooper DCJ's Judgment which I have earlier (see paras 14, 16 (above)) recorded, the sole basis upon which his Honour found the Council liable to contribute to any award of damages made against the Defendant was its "failure to have appropriate signage" - a ghastly neologism - which failure, as Davies AJA has pointed out in his Judgment, Cooper DCJ dealt with not as "misfeasance" but under the ordinary principles of negligence, a course which Davies AJA appears - rightly in my view - to regard as having been impermissible. This notwithstanding, and notwithstanding that, as I have earlier (para. 18) noted, no Notice of Contention was filed on behalf of the Defendant, Davies AJA, in his Judgment has written: "I am accordingly of the view that the failure to put in adequate advisory warning signs, to warn of the change in the nature of the road and of the speed environment, created a trap and that the Council's failure in this respect was misfeasance for which it was responsible. In my opinion, this duty arose in 1978 when the bitumen was laid down. The danger was apparent. As the Council could foresee the problem which inadequate signage would cause, it was no answer to say, as Mr. Cox said, that it wasn't 'totally necessary' to indicate that there was a dangerous winding road ahead or that there was no need to do so at that stage because there was no evidence then of any danger. The danger was reasonably foreseeable and readily remedied at little cost. As tourism was developed, the duty was certainly enlivened, as in Turner's case but, in my view, it existed when the 6 kilometre section of the road was sealed."

and later: "In the present case, I am satisfied that the sealing of the road up to the dangerous part of Thunderbolt's Way encouraged drivers to increase speed and therefore created a trap because of the relatively dramatic change in conditions immediately thereafter. It seems to me, that the evidence establishes that there was duty on the Council to warn of the changed nature of the conditions which would be encountered on leaving the bitumen and that the sign 'Gravel Road' was inadequate. In that circumstance the Council was guilty of misfeasance."

and later again when dealing with the question of causation: "In the present case, I am satisfied by the evidence that there was a duty on the Council to install an adequate sign or signs warning of changed environment that would be encountered on leaving the bitumen and that its failure to do so was a cause of the accident."

39 As will be apparent from what I have earlier recorded, I am unable to agree with the approach taken by Davies AJA in the passages from his Judgment which I have set out above. 40 The case which the Defendant sought to make at trial was, not a case of misfeasance in the sense of creating a trap such as has been suggested by Davies AJA - a fact which is clearly demonstrated in the present case by the absence of any Notice of Contention filed on behalf of the Defendant - but a case of nonfeasance - in the sense of failure to keep the roadway safe in the respects particularised in paragraph 6 of its Second Amended Third Party Notice, which failure Cooper DCJ dealt with under the general heading of negligence because of his Honour's belief that the decision of this Court in Turner v. Ku-ring-gai Municipal Council (1990) 72 LGRA 60; 12 MVR 321 imposed upon the Council, notwithstanding that it was a highway authority, a duty, whenever traffic using the highway might be exposed to risk, to install advisory speed signs or other warning devices. 41 In Singleton Shire Council v. Brodie [1999] NSWCA 37 I said supra at [41]: "Contrary to what appears to have been the understanding of the draftsman of the Statement of Claim which was filed on behalf of the Respondents, it is not the case that a road authority - such as the Council - is liable in damages to those who have suffered injury in accident (sic) caused by the failure of the road authority to maintain roads - included in which description are structures intended for the passage of traffic along the roadway - in proper repair. The immunity of a road authority in this respect negates both a general duty to repair (sounding in nuisance) and the specific obligation to exercise care in control and management even with respect to known dangers (negligence)."

a statement which I sought to support by reference (inter alia) to the following passage in the Judge of Dixon J (as the then was) in Buckle v. Bayswater Road Board (1936) 57 CLR 259, 281-282 : "It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road of other highway. Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinct from a discretionary, duty of repair and to confer a correlative private right (cf City of Vancouver v. McPhalen (1911) 45 SCR(Can) 194). No civil liability arises from the incorporated character of the road authority, or from the fact that it is expressly made liable to be sued ( Gibson v. Mayor of Preston (1870) LR 5 QB 218). Nor is its responsibility affected by a statutory provision vesting the soil of the highway in it, or placing the highway under its management and control ( Cowley v. Newmarket Local Board [1892] AC 345; Municipal Council of Sydney v. Bourke [1895] AC 433). The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier or property. The body remains a public authority charged with an administrative responsibility. It must decide upon what roadway it will expend the funds available for the purpose, what are the needs of the various streets and how it will meet them. A failure to act, to whatever it may be ascribed, cannot give a cause of action. No civil liability arises from an omission on its part to construct a road, to maintain a road which it has constructed, to repair a road which it had allowed to fall into disrepair, or to exercise any other power belonging to it as a highway authority."

42 The power which, in 1992,was conferred on councils by s.269A(3)(b) of the Local Government Act 1919 to control or regulate the use by traffic of a public road was just that - there was no duty on a council without more to exercise the power. As Lord Romer said in East Sussex Rivers Catchment Board v. Kent [1941] AC 74, 102: "Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing."

43 Even if the case which the Defendant sought to make at trial had been one of misfeasance, he would, in my view have failed. 44 As Davies AJA recognises the decision of this Court in Turner v. Ku-ring-gai Municipal Council supra did not - nor, for that matter, did the earlier Judgment of this Court in Hill v. Commissioner for Main Roads (1989) 68 LGRA 173; 9 MVR 45 - establish that the failure to erect advisory signs constituted misfeasance; rather, those Judgments do no more than provide particular examples - since, in Hill v. Commissioner for Main Roads, the road in question had been negligently constructed and negligently repaired, while, in Turner v. Ku-ring-gai Municipal Council, the road in question had been negligently constructed - of the principle that, while a road authority will not be liable in damages merely because it failed to exercise a power to prevent injury, it will be liable if it were an active agent in causing or adding to an unnecessary danger in the highway and then failed to exercise its powers so as to prevent persons suffering injury by reason of that danger. 45 In the present case, the risk of injury to which traffic travelling South-East along Thunderbolt's Way at the relevant part of the road were exposed was the result, not of the fact that some 6 kilometres of the road to the North-West had been bitumen sealed, but of what Cooper DCJ described as "the presence of the combination of steep descent, curves, and of loose gravel on the surface of those curves". 46 Even if it had been otherwise, the Defendant would, in my view, have failed to demonstrate that the accident had been caused by any misfeasance on the part of the Council. 47 The Defendant's recollection (Black AB 49) that there was some sealed road "round about the turn-off" at Nowendoc and that after that the road became unsealed, that part of the road being "quite awful. It narrowed, it started to have a build up of gravel in the centre, on the sides of the road. It was starting to undulate" facts which led him to reduce speed quite considerably. The Defendant's evidence further was (Black AB50) that he did not recall a sealed section of the roadway just prior to the accident and that he did not observe any signs on the side of the road indicating change of condition. This notwithstanding, the Defendant claimed that "once (he) got very near the accident site, where the road started to go into a series of corners, (he) slowed down considerably" and that "(at) the left hander before the wide right hander (he) would have been travelling about 25 kilometres at that point". In the course of his cross-examination (Black AB 55) the Defendant said that at the time he reached the left hand bend he knew that he was driving on a gravel road, that by that time the road surface had deteriorated, that he knew that the road was "windy" and that although he did not know what was up ahead he had good reason to believe that "the type of road would continue". 48 Even if - which, as I have earlier indicated had not been the case - the Defendant had sought to raise against the Appellant a case of misfeasance by creating a trap against which he as not adequately warned this evidence, in my view, would not have sustained a finding of causation. 49 For these reasons I would propose that the following orders be made:

ORDER that the verdict and judgment on the Defendant's Second Further Amended Third Party Notice be set aside.

IN LIEU THEREOF ORDER that there be found a verdict and that judgment be entered in favour of the Third Party against the Defendant on the Second Further Amended Third Party Notice.

ORDER that the Defendant pay the Third Party's costs of the trial and of the Appeal.

ORDER that, if qualified, the Defendant have a Certificate under the Suitors Fund Act 1951. 50 DAVIES AJA: This is an appeal by leave from the interlocutory judgment of a Judge of the District Court of New South Wales, his Honour Judge Cooper, on a Third Party Notice directed by John McLenaghan to the present appellant, Gloucester Shire Council (the Council). John McLenaghan had been sued on behalf of his son, Gerard Thomas McLenaghan, and found liable for damages arising out of a motor vehicle accident in 1992 in which he had been the driver. The learned trial Judge found that the Council also was liable for negligence and attributed 30 per cent of the total liability to its negligence. 51 In order to deal with the issues raised in the appeal, it is necessary to discuss the evidence in some detail. One of the roads which connects Armidale on the northern tablelands with the coast highway is that from Walcha on the tablelands to Gloucester near the coast. This road, which developed many years ago as a narrow, windy, gravel road used for timber logging, came under the Council's control in 1960. It has since been improved in parts but funds available to the Council have not permitted adequate upgrading throughout the whole length of the road. In recent times, the road has been renamed "Thunderbolt's Way" with a view to attracting the interest of tourists. Mr McLenaghan was driving his family south-easterly down the road. He had not had much experience in driving on unsealed road surfaces. He had not previously driven on Thunderbolt's Way. The proprietor of a hotel in Armidale, in which he and his family had stayed the previous night, had suggested to him that he might take the scenic road through Walcha down to Gloucester. 52 The road from Armidale to Walcha was sealed. Between Walcha and the Nowendoc turn off, there were sections of both sealed roadway and unsealed roadway. The unsealed surfaces themselves were "flat and hard and wide", to use the words of Mr McLenaghan which were cited by the trial Judge. After leaving the Nowendoc turn off, Mr McLenaghan travelled on a sealed portion of the roadway some 6 kilometres long. The sealed section finished about 600 metres before the bend where the accident occurred. One hundred metres before the end of the sealed section was a sign saying "Gravel Road". In his evidence, Mr McLenaghan described the road shortly before the site of the accident as follows: "I thought it was quite awful. It narrowed, it started to have a build up of gravel in the centre, on the sides of the road. It was starting to undulate." 53 Mr McLenaghan was driving a Falcon station wagon. He had his wife and five children on board. He reduced speed quite considerably. The car went around a left hand bend and up a slight rise. It then commenced to go down a decline around a right hand bend. At this point, the car drifted across and down the road leaving drift marks for about 35 metres. Mr McLenaghan gave evidence that he believed that, at the time, he had been travelling about 35km/h. The trial Judge made no specific finding as to the speed but found that Mr McLenaghan was driving too fast in the circumstances. The trial Judge accepted the evidence of Senior Constable Dodds that a maximum of about 35-40km/h was the speed at which one could safely negotiate the right hand corner in a vehicle such as the station wagon. Apart from the fact that the road tended to be rough with loose gravel, it had, on this particular bend, an opposite camber so that it sloped away towards the driver's left, notwithstanding that the road was turning to the right. In cross-examination, Senior Constable Dodds was unable to disagree with the proposition that the reverse camber commenced only 2 metres from the left hand edge and did not extend to the centre of the road. 54 Mr McLenaghan gave this evidence, inter alia: "Q. What happened to you when you went right into the corner? A. The road then started to straighten up and to go into a decline. Q. Did you have any warning of that decline? A. No. … Q. When the car entered the, or began to go down the decline, did something happen to the car? A. I felt the car - once again this is only an impression because it was so long ago, and it only lasted a few seconds, but the car felt as if it bottom and shifted. HIS HONOUR: Q. What do you mean by bottom? A. The car seemed to push down on the shock absorbers slightly, bounce up a little bit. There was some sort of corrugation because it was shuddering and then it shifted left. ARDEN: Q. Was it the whole of the car that went left or was it just the back or the front or which part? A. It was more of a drift of the whole car rather than a swinging out of the back end. … Q. … Had there been signs there indicating that there was a change of conditions such as you experienced, would you have taken notice of those signs?

A. I don't think having a speed sign would have made any difference, because I wasn't travelling fast. I think if there'd have been a steep descent sign, I would have changed into a lower gear." 55 The statement which Mr McLenaghan made to Senior Constable Dodds shortly after the accident was as follows: "We were travelling East on the Thunderbolts Way travelling at about 60kph we were negotiating a right hand bend down a grade. The car seemed to bottom out and skid to the left. I corrected it back to the right then back to the left. The car skidded left into a tree. The rear left hand guard collided with the tree." 56 Senior Constable Dodds gave evidence that the gravel road immediately after the end of the bitumen was relatively smooth and straight but, by the time the right hand bend was reached, the road surface was extremely loose and unpredictable and a driver had to cope not only with the right hand bend but also with a downward slope which occurred at that point. On the desirability of signposting, Senior Constable Dodds gave this evidence: "Q. That there should've been a sign just before this corner showing that there was a curve to the right accompanied by a drop? A. Again that's difficult to say sir. This area from this corner onwards is very windy and indeed from here to the rest of the Thunderbolts Way until it gets down to the bottom of the hill near the river is a very windy area, I would say a sign indicating a very steep windy road would be more appropriate, not just the one advisory sign. Q. But this was the beginning of the bad section was it? A. I would say yeah it is the beginning of a road that gradually gets steeper and more windy, I would say one sign saying that there are a number of dangerous curves or a number of sharp curves would be more appropriate rather than just one advisory sign because you'll be doing it every 20 metres, 50 metres, 100 metres. Q. So what you're saying is, I think, that at the end of this bitumen road and before this corner where the accident happened there should've been some warning sign to tell unwary users of the road that we're going into a pretty dangerous section? A. Yeah that and a loose gravel sign. I don't know the maintenance of or what Gloucester Council or whoever maintains the road but with that amount of traffic I would say that the road should've been posted to say that there was a large amount of loose gravel on the road." 57 Other witnesses expressed a like view. Mr Rodney Vaughan, a consultant in vehicle engineering and traffic safety, who gave evidence for the Council, reported that the erection of further signposting would have enhanced the safety of the road. To use the words of Mr Vaughan, "Undoubtedly signposting would have been desirable at the time of the accident" and "the erection of further signposting would have enhanced the safety of the road". Mr Alan Joy, a director of Jamieson Foley & Associates, consulting engineers, who gave evidence for Mr McLenaghan, reported that, had the warning and advisory signs which were in place at Mr Joy's inspection in July 1996 been in place at the date of the accident, it was quite possible that Mr McLenaghan would have observed them and entered the curves at a lower speed. Mr Joy reported: "There was at the time of the crash inadequate information provided to the unfamiliar driver as to the lower design speed of the section or the road conditions to be encountered on the section where this crash occurred, particularly given the foreseeability of tourists using the route. This shortcoming has been addressed subsequently by additional signposting at least on approach to the crash site." 58 Mr Robert Hedley of Hedley & Parkinson, surveyors and civil engineers, who gave evidence for Mr McLenaghan, reported that the Council gave insufficient warning by way of signage of a dramatic change in the road condition prior to the accident site. In his report of 21 February 1994, Mr Hedley said: "Where possible road building is carried out to a uniform standard with respect to traffic speed. Should improvements or natural terrain provide higher standard sections it would be usual to provide warning signs for the lesser standard following section."

Mr Hedley's report of 11 August 1996 stated, inter alia: "I believe that the roadworks constructed by Gloucester Shire Council ignored long established principles of good design in that; 1. …

There was no indication for eastward bound traffic that the road conditions following the reconstructed section would change abruptly (by at least 20 kph) from a high speed to a low speed environment."

Mr Warwick Keirnan, a consulting civil engineer, who also gave evidence for Mr McLenaghan, reported: "Travelling the route in a southerly direction, the road environment changes from a bitumen sealed surface on a reasonable alignment to a loose gravel surfaced section with a tight horizontal and steeper vertical alignment. Thus there was a significant change in the speed environment between the end of the bitumen seal and the curves at the incident location." "Construction and bitumen sealing of the road immediately to the north of the incident location resulted in a significant drop in the road speed environment and the design did not provide adequate traffic control measures to warn southbound motorists." 59 In fact, after the subject accident and after another accident about a month later at about the same spot, advisory signs were installed between the end of the bitumen and the place where the accident occurred. One was a sign which advised of curves for the next 3 kilometres. The other was a sign indicating a right hand corner and advising 40km/h. A series of chevrons were also placed around the right hand corner. 60 Mr H J Cox, who at the time of the trial was a resources coordinator at the Council and who previously had been overseer for the Council with duties to inspect, report on roads and to oversee maintenance, gave this evidence, inter alia, on the aspect of signs: "Q. Because especially when you come to the end of the bitumen, it is most important to tell the driver by way of sign that there is a change coming up? A. Yes. Q. And he must accommodate that change? A. That's correct. Q. Now another thing that's important is that if you go from a very good stretch of bitumen road on one of these roads, onto a gravel road and then into a series of sharp bends, right are you with me? A. Yes. Q. It's important to tell the motorist before he leaves the bitumen that not only is a gravel road coming up but a winding road is following it? A. Yes. Q. That's very important isn't it? A. Depending on the road that - yes I agree that it is handy to know but it's never been required. Q. But you as a man who has taken on the responsibility of overseeing the works and checking this road, looking for dangerous parts of this road, have it in your mind that it is most important to draw to the motorist's attention that he is leaving a good high speed surface, in other words a lesser surface? A. Yes. … Q. Now it was very important to alert the public, not only the gravel road but also the winding road, wasn't it? A. I would consider the road always being there that it wasn't totally necessary to indicate that there was a winding road there. … Q. So it was a bad road causing problems that had to be rectified didn't it? A. Yes, well there was no need at that stage because of (lack of) evidence we had of having any problems. … Q. Are there any signs between the accident site and Gloucester? A. Two hundred. … Q. Did they go in - because it is a fairly windy road isn't it? A. Yes. Q. It needs signs? A. Yep. Q. Was it your recommendation that the signs go in on this particular accident site? A. Well having driven it for 20-odd I didn't consider it was necessary for the traffic volume. … Q. So you thought that was good enough, didn't require any signage? A. Well on previous traffic volumes and problems, it wasn't really necessary." 61 In his evidence, Mr Cox referred to the lack of accident history. Mr Vaughan, the consultant called on behalf of the Council, mentioned this when he reported: "In the case of the section of Thunderbolts Way where the accident of 10 October 1992 occurred, the accident history indicated that there was not a substantial accident problem prior to that date. The accident history of the road indicated that the number of crashes possibly on the unsealed section of road was low, but that the number of crashes possibly on the unsealed section of road was higher in 1992 than in previous years (although even then, the numbers were still very low). Since that time, some funds have been spent on signposting, but not yet on barriers or sealing of the road. Undoubtedly signposting would have been desirable at the time of the accident." 62 After examining a document which recorded traffic accidents, the trial Judge found that there had been seven relevant accidents on Thunderbolt's Way. His Honour was not satisfied that they had occurred at precisely the same site as the subject accident, but he was satisfied that they occurred within 5 or 10 kilometres of the accident site. On the hearing of this appeal, it was submitted that his Honour was mistaken as to some of the sites. Mr Vaughan identified one accident in 1987 which possibly occurred at or in the vicinity of the subject accident, one in 1988, one in 1990 and five in 1992, two of which might have possibly been 2 to 5 kilometres from the subject accident. No purpose would be served in discussing the accidents which were identified by his Honour. It is clear that there had previously been accidents on the road, although the accident rate was not high. 63 In addition to the accident record, the Council had also received letters criticising the state of the road. More than one referred to the inadequacy of the signage. A letter of 24 January 1990 from the Gloucester Rural Health and Safety Action Group to the Shire President stated, inter alia: "The major concern expressed was the lack of appropriate sign posting especially where the road surface changes from bitumen to gravel. Often there is little warning of this change which gives rise to even more dangerous driving condition - especially to people not familiar with the roads of this area." 64 The trial Judge found that it ought to have been, with the exercise of reasonable care, within the knowledge of the Council that the subject curves at or in the vicinity of the accident were a source of danger to users of the roadway. His Honour held that the Council had breached its duty of care to road users by not installing appropriate signage. His Honour made these findings: "… I am satisfied on the balance of probabilities, that reasonable care on the part of the cross-defendant required the council to erect some form of sign which gave warning of the nature of the roadway ahead for those travelling in the direction then being travelled by the defendant. I would consider it unreasonable to require the council to place a sign indicating a curve or speed advisory sign at each individual corner. There were some hundreds of corners, and this would impose a financial burden upon the council, which I would regard as unreasonable. However, what ought to have been erected in order to meet the standard of reasonable care, was a warning sign or signs, some 100 metres before the first curve (that is the left hand curve) warning motorists of the presence of the combination of steep descent, curves, and of loose gravel on the surface of those curves for the next stated number of kilometres. This would have brought home to the motorist the need to take special care. It is appreciated that the expert engineers, in their evidence, suggest something more. To my mind the view of Constable Dodds, which are set out earlier, are far more reasonable and logical, and I accordingly find this particular of negligence proved." 65 Mr G M Gendron, the Director of Technical Services of the Council, gave evidence that the Shire of Gloucester had only two thousand ratepayers and that, in the absence of special grants, it did not have funds available to do major works on Thunderbolt's Way. He said, however, that the signs installed after the accident cost about $1,500 and that that money could have been spent in 1990, if the Council had chosen to do so. Mr Gendron said that the installation of signs also involved the costs of their maintenance. Notwithstanding that evidence, the trial Judge considered that the Council had been negligent in not installing adequate signage between the end of the bitumen and the first bend. 66 The trial Judge considered the issue of road signs under the ordinary principles of negligence rather than under the non-feasance/misfeasance rule applicable to road authorities which was enunciated in Buckle v Bayswater Road Board (1936) 57 CLR 259 and Gorringe v The Transport Commission (TAS) (1950) 80 CLR 357. In Singleton Shire Council v Brodie [1999] NSWCA 37, Powell JA, with whom Handley and Giles JJA agreed, stated the principle in this way: "Contrary to what appears to have been the understanding of the draftsman of the Statement of Claim which was filed on behalf of the Respondents, it is not the case that a road authority - such as the Council - is liable in damages to those who have suffered injury in accident caused by the failure of the road authority to maintain roads - included in which description are structures intended for the passage of traffic along a roadway - in proper repair. The immunity of a road authority in this respect negates both a general duty to repair (sounding in nuisance) and any specific obligation to exercise care in control and management even with respect to known dangers (negligence). That immunity is reinforced by the authorities which demonstrate that, even if a duty to repair or to keep in repair a highway or highways is imposed by statute on a road authority, that duty is not enforceable by action at the suit of any person injured as the result of the failure to repair the highway or to keep it in repair, unless the statute makes it clear by express provision or necessary implication that that duty is to be enforceable by action at the suit of such a person." 67 The trial Judge stated the law to be applied as follows: "In determining whether the council was negligent, it must be borne in mind that it is not liable for mere non-feasance, but is liable only for misfeasance. Thus council is not responsible for mere failure to maintain, only for failure to do such work as it did do in a reasonably safe and proper manner. In addition, council is liable for failing to provide added warnings by signposts. See Turner v Ku Ring Gai Municipal Council, 12 MVR 321." 68 In Turner v Ku-ring-gai Municipal Council (1990) 72 LGRA 60, the issue of the Council's liability arose in the circumstance that it had constructed a suburban road on which there was a 60 km/h speed limit but which had a negative camber on a down-hill curve, at which point there was no advisory speed sign. The Court, constituted by Kirby P, Priestley and Handley JJA, considered that the power to erect advisory speed signs arose under the provisions of Division 13 of the Local Government Act, 1919 headed "Traffic" which dealt with the power of councils to control and regulate the use by traffic of a public road. The Court considered that the power appeared in s 269A(3)(b) which provided: The council may control or regulate the use by traffic of a public road if the council does so: … (b) for the purpose of the prevention of injury to persons, or damage to property, on the public road for a period no longer than is necessary for that purpose; 69 At 67, their Honours expressed the view that there was scope for a jury in a new trial to consider whether the dangerous state of the road called for the erection of an advisory speed sign. Their Honours went on to say at 67-8: "We are reinforced in this conclusion by the fact that the nonfeasance/misfeasance distinction has no application to negligent omissions by a traffic authority even though it happens also to be the highway authority." 70 After referring to Skilton v Epsom and Ewell Urban District Council [1937] 1 KB 112, Simon v Islington Borough Council [1943] 1 KB 188 and Connelly v Ministry of Transport (1965) 63 LGR 372, with which decisions their Honours expressed agreement, their Honours said at 68: "In our opinion the Council's duty (if any) to erect an advisory speed sign on this section of road involved an exercise of its powers as a traffic authority, and accordingly the immunity for nonfeasance which it enjoyed in relation to the surface of the road had no application. While the occasion for the erection of such a sign would be the allegedly dangerous situation created by the negative camber, the duty would not arise once and for all when the road was reconstructed in 1963. Circumstances occurring later such as a multiplicity of accidents could enliven the duty and oblige the Council to act." 71 The words of their Honours are perhaps equivocal, but the view has been expressed that the decision of the Court was based upon the existence of misfeasance by the Council. In Threadgate v Tamworth City Council [1999] NSWCA 32, Handley JA, who had been a member of the Court in Turner's case, said at [17]: "The Court in its joint judgment particularly at p328 and p329 makes it clear that the camber on the particular section of the road was arguably dangerous because of the way in which it had been initially constructed or last reconstructed before the accident. The danger could have been dealt with either by doing further work on the road surface, or by erecting an advisory speed sign, or perhaps by some combination of the two. In other words the need to erect the sign was arguably enlivened by the dangerous situation created by the council when it reconstructed the road surface."

Powell JA expressed a like view when he said at [21]: "It seems to me that too much is sought to be read into the decision of this Court in Turner v Ku-ring-gai Municipal Council which is, in my respectful view, merely an example of the fact that a highway authority may be rendered liable to those who are injured when using the highway if the authority was an active agent in creating an unnecessary danger in the highway."

Giles JA agreed with both observations. 72 I agree with the explanation given by their Honours of Turner's case. Notwithstanding that I am bound by the ruling that the power to erect advisory signs now arises under s 269A(3)(b) in the Division which deals with the control and regulation of traffic, it appears to me that there is a fundamental difference in nature between the exercise of a power to erect advisory signs and the exercise of a power to erect signs having mandatory effect. The former signs appear to me to be related to and incidental to a road making and road maintenance function, the latter to the function of a traffic authority. Accordingly, I proceed on the basis that the issue of the erection of advisory signs of the nature here in question must be considered in accordance with the misfeasance/non-feasance rule which applies to road authorities. 73 In Calvaresi v Beare [2000] SASC 21, Doyle CJ expressed the view that the non-feasance/misfeasance rule did not apply when the council was exercising powers in relation to traffic control devices. However, the traffic control sign there in issue was a mandatory sign, a give-way sign. Commissioner of Main Roads v Hennessey (Supreme Court of Western Australia, Full Court, 27 September 1996, unreported), constituted by Franklyn, Scott and Steytler JJ, was similar to Turner's case, for a chicane had been created as a road calming device and the council had failed to warn that, due to the narrowness of the chicane, two vehicles approaching each other could not pass. Either a stop sign or a warning sign should have been erected. McIntyre v Ridley District Council (1991) 56 SASR 343 was also similar to Turner's case. At 351, King CJ, with whom Zelling AJ agreed, said: "It follows from the principles set out in the above passage that where a road authority undertakes road work which produces a risk to the motorist unless certain precautions are taken, it is the duty of the authority to provide the necessary warnings to the public. Failure to do so is not nonfeasance but is misfeasance because the authority has caused the danger by its execution of the road work." 74 It is therefore necessary to ascertain whether there was an underlying misfeasance by the Council which enlivened the need for the Council to provide advisory signs, such as they erected after the subject accident. 75 Although the trial Judge did not specifically address this issue, he made this finding of fact: "At the date of the accident, a vehicle travelling south, approaching the subject curves, left a sealed road with only one warning sign, and that said 'Gravel Road'. This was merely a warning as to the nature of the surface upon which the vehicle was then about to pass. It gave no warning whatsoever of the descent, or of the curves, or of the loose gravel on the surface of those curves, and thus left the driver unfamiliar with the road, in a state of some ignorance of the dangers that lay ahead."

His Honour found that a warning sign or signs should have been placed some 100 metres before the first curve, the left hand curve, warning motorists of the presence of the combination of steep descent, curves and of loose gravel for a number of kilometres. One of the photographs in evidence showed that the first of the signs installed after the accident, the sign showing curves for the following 3 kilometres, was placed approximately 320 metres after the end of the bitumen. The advisory speed sign was shortly before the right hand bend and about 450 metres from the bitumen. 76 There was adequate evidence that the lack of adequate signage after the end of the bitumen created a trap which could mislead persons unfamiliar with the area. The experts were in general agreement on this point. I have already set out the passage of Mr Hedley's report of 11 August 1996 that the bitumen roadworks constructed by the Council ignored long established principles of good design and that there was no indication for eastbound traffic that the road conditions following the reconstructed section would change abruptly. Mr Keirnan and Mr Joy also gave evidence of the inadequacy of the "Gravel Road" sign to warn of the significant drop in the road speed environment that would be encountered after leaving the bitumen. Mr Vaughan, who reported on behalf of the Council, did not speak of a trap but he did say: "Entering the gravel section of the road in a south bound direction, the road had a series of short straight sections and curves, as well as having a descending gradient. The conditions changed a number of times over a short distance. Ideally, the winding section of road and the descending gradient would have been signposted, while the individual curves would also have been signposted." 77 In addition to the views expressed by the experts on this point, there was the letter from the Gloucester Rural Health and Safety Action Group of 24 January 1990, which expressed a concern as to a lack of appropriate signposting, especially where the road surface changed from bitumen to gravel, and the evidence of Mr Cox, the principal witness for the Council, who agreed in the passages I have set out above that it was important to draw to a motorist's attention the nature of the change after leaving a good surface. Mr Cox said in evidence that the fairly, windy road needed signs but that he considered that, because the road had been there for a long time, it wasn't "totally necessary" to indicate that there was a winding road ahead. Senior Constable Dodds, in evidence which was adopted by the trial Judge, agreed that, at the end of the bitumen before the corner where the accident happened, there should have been a warning sign to tell the users of the road that they were moving into a dangerous section. Mr Gendron, who was responsible for engineering works within the Shire, in his evidence, agreed that there was a significant change in the speed environment between the end of the bitumen seal and the incident location but expressed the view that the sign "Gravel Road", which was erected shortly before the end of the bitumen, was a sufficient warning. The trial Judge understandably rejected that view. 78 I am accordingly of the view that the failure to put in adequate advisory warning signs, to warn of the change in the nature of the road and of the speed environment, created a trap and that the Council's failure in this respect was misfeasance for which it was responsible. In my opinion, this duty arose in 1978 when the bitumen was laid down. The danger was apparent. As the Council could foresee the problem which inadequate signage could cause, it was no answer to say, as Mr Cox said, that it wasn't "totally necessary" to indicate that there was a dangerous winding road ahead or that there was no need to do so at that stage because there was no evidence then of any danger. The danger was reasonably foreseeable and readily remedied at little cost. As tourism was developed, the duty was certainly enlivened, as in Turner's case, but, in my view, it existed when the 6 kilometre section of the road was sealed. 79 In his evidence, Mr McLenaghan said that he did not think that a speed sign would have made any difference as he was travelling slowly. However, the trial Judge found that Mr McLenaghan had been driving too quickly in the circumstances. The evidence of the experts was to the contrary of Mr McLenaghan's evidence. 80 The conceptual difference between misfeasance and non-feasance is clear enough, although the practical application of the principle may be difficult. In Singleton Shire Council v Brodie [1999] NSWCA 37, Powell JA, with whom Handley JA and Giles JA agreed, held that a council was not liable for misfeasance in the circumstance where it had replaced decking boards on the top of a bridge but had not replaced the underlying structural timbers. The bridge had collapsed when a heavy vehicle drove onto it. At [46], Powell JA said: " [I] t seems to me that such actions as the Council may, from time to time, have taken in replacing defective decking planks are to be regarded as no more than superficial repairs to the road surface and thus - since they did not increase the risks of accidents - did not subject the Council to liability."

His Honour distinguished Hill v Commissioner for Main Roads (1989) 68 LGRA 173 on the ground that, in that case: "The patching [to the road] did no more than … throw open an unsafe road to traffic afresh. The patching was therefore negligent because it failed to remedy a foreseeable risk which was … certain to reappear at some stage in the future with predictable and hazardous consequences to the users of the highway." 81 In the present case, I am satisfied that the sealing of the road up to the dangerous part of Thunderbolt's Way encouraged drivers to increase speed and therefore created a trap because of the relatively dramatic change in conditions immediately thereafter. It seems to me, that the evidence establishes that there was a duty on the Council to warn of the changed nature of the conditions which would be encountered on leaving the bitumen and that the sign "Gravel Road" was inadequate. In that circumstance, the Council was guilty of misfeasance. 82 It has been submitted that the trial Judge found to the contrary when he said: "This accident did not occur because of the transition of the sealed road to the gravel road. That transition was adequately signposted. In fact the accident occurred some 600 metres south of the southern end of the bitumen. Accordingly, this particular of negligence is not established."

I consider that, in this passage, the trial Judge was merely turning his attention to the point of transition from the bitumen to the gravel and not to the significant drop in the road speed environment which would be encountered. His Honour did not reject the evidence to which I have referred. Indeed, it is clear that his Honour agreed with it. If his Honour did intend to reject the point I have made, I consider that the finding was contrary to the evidence. 83 In the present case, I am satisfied by the evidence that there was a duty on the Council to install an adequate sign or signs warning of the changed environment that would be encountered on leaving the bitumen and that its failure to do so was a cause of the accident. 84 For these reasons, I am of the opinion that the judgment below was correct. I would dismiss the appeal with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (38 paragraphs)

Parties

Cases Cited (6)